The Jury: Trial and Error in the American Courtroom.

The American jury is much maligned. It is perceived by many to be ignorant, bigotted, and easily manipulated. These timely new books offer us strikingly different portraits of America in the '90s through a close examination of the jury in crisis. The jury is an appealing subject for such a portrait because it is such a difficult institution to circumscribe. After many studies and many books and articles, it remains strangely resistant to explication. How it works and even whether it works remain basically mysterious.

Any close-up look at the jury at work in a particular case shows it to be an unwieldy and crude tool for the implementation of justice. As these two books constantly remind us, the work of juries reveals us at our best and our worst--at once both sublime and ridiculous. Every tale of justice triumphant, as in the trial of John Peter Zenger, in which colonial jurors, under considerable pressure, refused to convict a printer of sedition, is matched with one of justice mocked, as in the shocking and hasty racist trial of the Scottsboro Nine. Is the price too high? Can the obvious flaws in the jury system be mended?

Abramson and Adler both examine the paradoxes of the jury and refer to many of the same cases. Yet they give us very different pictures of ourselves as jurors. Adler is a journalist. On the basis of interviews with many jurors, lawyers, and judges, he recreates six recent jury trials; one he labels a success and five he judges failures. His style is streamlined and fast-paced, full of colorful personalities, and of imagined reconstructions of jury-room debate. Some of the details of the history of the jury and some of the philosophical and constitutional issues that surround it are referred to within the context of these six recent trials. But the focus is on those trials and his story is largely one of failure. In Adler's view the jury system is not working and it needs to be fixed.

Part 1 of We, The Jury is titled "The Vision" and tells of the trial and sentencing of a confessed murderer in a Texas State court (Texas v. Robertson). Each juror is introduced by name and background. We learn of the chilling process of "death-qualifying" a jury. (Each juror in a capital case must agree in advance that he or she is willing to consider a death sentence.) In this case, two potential jurors expressed serious doubts about the death penalty but both agreed to follow the law and both were seated. Both also were reluctantly persuaded to impose the death penalty. It is a sobering tale. One is haunted by the stifled misgivings of these two young women. And yet this trial is the one Adler chooses to label a success because, as he sees it, the jurors understood what they had to do and took it seriously.

The second part of Adler's book, "The Disappointment," tells of five trials, each of which demonstrates a different supposed shortcoming of the American jury. The Imelda Marcos case shows a jury which, according to Adler, acquitted out of ignorance and misplaced sympathy. A dram shop case shows a jury manipulated through the use of scientifically selected focus groups. An antitrust case displays the inadequacies of an uneducated jury to handle the complexities of economic issues. A huge award in a case in which a woman was infected with AIDS through a blood transfusion shows a jury blundering in the dark about how to determine damages. Finally, a murder case shows a jury acquitting a cop of the jealous murder of his wife's lover, in apparent defiance of the evidence. Adler asks us to second-guess the results in each of these cases and to condemn each jury as inadequate to the task before it.

While it is fascinating to read the reconstructions of these cases and one is drawn into the human drama of the jury room in each case, Adler's conclusion that these are stories of failure is less compelling, particularly after reading Abramson. Abramson, a lawyer and a political scientist, has enormous faith in juries as the most democratic form of self-governance we have. He makes his case through a complex yet exciting retelling of the history of the jury and of changes in the jury's make-u and role, constantly holding up to us the democratic ideal of ordinary citizens deliberating across community divides to arrive at decisions that transcend the work of judges and lawyers.

In The Jury, Abramson makes passionate pleas for abolishing peremptory challenges, for explicit acknowledgement of the value of jury nullification, for a continued requirement of unanimous verdicts, and for the end of the death penalty. In each case, the ideals of American democracy, from early self-government to the demand for equal protection, argue for a jury which is impartial without being ignorant and which represents the community and yet does that in order to foster better deliberation rather than to provide each segment of the community with a vote. Abramson is very skeptical of the vaunted power of social science in the selection of, and manipulation of, juries. He believes that the cynical attitude of the American public regarding the effectiveness of jury manipulation is the result of inaccurate and unwarranted attention to the subject on the part of the media.

Race marks a huge exception to Abramson's general confidence in the competence of juries. The sad fact that murderers of black victims are far less likely to be condemned to death than the murderers of white victims, no matter what the race of the murderer, is, in Abramson's view, reason enough to discontinue the death penalty: "Even friends of the jury must acknowledge that the power to sentence to death is not one jurors can morally exercise on behalf of a community conscience that fails to live up to its own aspirations for color-blind justice."

After reading Abramson, we return to Adler's five cases of failure, none of which concerns race, with the suspicion that these juries were working better than Adler thought. Perhaps these trials were not failures. Perhaps, however clear the evidence, we had no business prosecuting Imelda Marcos for her crimes against the Philippine people; perhaps Pizza Hut had been negligent, in contrast to other restaurant owners, in its casual attitude toward lunchtime drinking; perhaps the impenetrable complexity of the tobacco antitrust case and the huge award in the AIDS case are not the result of flaws in the jury system but the result of poor lawyering and poor judging; and, finally, perhaps the jury had good reason to go with the cop's story in the last case.

Having read Abramson we are less sure of our own ablity to second-guess the jury. Adler wants the jury room deliberations to look logical and follow the law. Abramson warns us that at best we are getting a kind of rough justice, a rough justice that sometimes deliberately flaunts the law.

Finally we return to Adler's first case. Far from being a success story, Texas v. Robertson now appears a tragedy. It is the story of two young jurors being pressured to act against their consciences. Is it not precisely in capital cases, in which justice is arguably impossible to achieve, whether or not race is involved, that the jury fails us? Given a choice, Abramson's America, while deeply flawed, gives more hope of justice than does Adler's.